JUDGMENT NO. 126

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 104-bis, paragraph 1-bis, second period, of Legislative Decree No. 271 of 28 July 1989 (Implementing, coordinating and transitional provisions of the Code of Criminal Procedure), as replaced by Article 373, paragraph 1, letter a), of Legislative Decree No. 14 of 12 January 2019 (Code of Business Crisis and Insolvency implementing Law No. 155 of 19 October 2017), and amended by Article 41, paragraph 1, letter l), number 2), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the prompt conclusion of judicial proceedings), brought by the Court of Cassation, Third Civil Section, in the proceedings pending between Penelope SPV srl, represented by Intrum Italy spa, Luzzati pop npls 2021 srl, Agenzia delle entrate - Riscossione and G. V., by means of the referral order of 9 October 2025, registered under no. 253 of the 2025 order register and published in the Official Journal of the Republic No. 1, 1st special series, of the year 2026.

Having heard in chambers on 8 June 2026 the Judge Rapporteur Stefano Petitti;

Deliberated in chambers on 8 June 2026.

The Facts in Law

1.– By order of 9 October 2025, registered under no. 253 of the 2025 order register, the Court of Cassation, Third Civil Section, raised questions as to the constitutional legitimacy of Article 104-bis, paragraph 1-bis, second period, of Legislative Decree No. 271 of 28 July 1989 (Implementing, coordinating and transitional provisions of the Code of Criminal Procedure), as replaced by Article 373, paragraph 1, letter a), of Legislative Decree No. 14 of 12 January 2019 (Code of Business Crisis and Insolvency implementing Law No. 155 of 19 October 2017), and amended by Article 41, paragraph 1, letter l), number 2), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the prompt conclusion of judicial proceedings).

In the opinion of the referring judge, the censured provision violates Articles 3, 24, 42, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, insofar as it provides that, in relations with individual enforcement proceedings, preventive seizure aimed at confiscation by equivalent value, pursuant to Articles 321, paragraph 2, of the Code of Criminal Procedure and 322-ter of the Criminal Code, as well as such confiscation itself, shall be governed by the provisions of Legislative Decree No. 159 of 6 September 2011 (Code of anti-mafia laws and prevention measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), "rather than by the rule of the ordo temporalis of publicity formalities”.

1.1.– The referring Court states that it is seized with a preliminary referral, pursuant to Article 363-bis of the Code of Civil Procedure, ordered by the Ordinary Court of Pavia, acting as the court of opposition to enforcement, for the resolution of the question of law concerning the "regime of enforceability against third parties, in relation to the same immovable property, of the ordinary confiscation measure (or preventive seizure aimed at ordinary confiscation) against a creditor with a mortgage registration prior to the issuance or transcription in the real estate registers of the ordinary confiscation (or the preventive seizure aimed at it) and against a creditor who has transcribed an attachment prior to the issuance or transcription in the real estate registers of the ordinary confiscation (or the preventive seizure aimed at it)”.

Having deemed the preliminary referral admissible, and having deemed it possible to raise incidentally therein a question of constitutional legitimacy for the purpose of stating the principle of law, the Court itself outlines the terms of the questions as follows.

2.– According to nomophylactic case law, the provisions of Legislative Decree No. 159 of 2011 do not apply to types of confiscation for which there is no specific regulatory referral, with regard to which the general principle of the temporal succession of publicity formalities must be observed.

This approach must now be reconciled with the entry into force, as of 15 July 2022, of Article 317 of Legislative Decree No. 14 of 2019 and with the amendments introduced by the latter decree to the provision under challenge.

2.1.– Contrary to what is suggested by the Court of Pavia in the preliminary referral, the referring Court excludes that Article 317 of the Business Crisis Code, in establishing the precedence of criminal real precautionary measures over insolvency proceedings, also applies to individual enforcement proceedings.

Such extension is prevented by the heterogeneity between collective insolvency proceedings and individual enforcement, which would not cease even if multiple creditors participate in the latter through intervention.

The referring Court assumes, however, that an effect analogous to that hypothesized by the Court of Pavia derives from the other mentioned regulatory innovation, namely the text of Article 104-bis, paragraph 1-bis, second period, of the implementing provisions of the Code of Criminal Procedure, as replaced by Article 373, paragraph 1, letter a), of the Business Crisis Code.

Indeed, by referring to the provisions of the anti-mafia code "for the protection of third parties” for any seizure aimed at confiscation, including that functional to ordinary confiscation, the provision in question would subject to the rules of that code—and thus to the rule of precedence of the criminal measure—even cases not falling within the objective scope of those rules, and therefore extraneous to the corresponding public-interest ratio; and—the referring judge adds—"the notion of ‘protection of third parties’ is so broad as to also include the creditors, both attaching and intervening, of an individual enforcement proceeding concerning the assets affected by the preventive seizure, as well as the successful bidder of the same”.

2.2.– The Court of Cassation points out that Articles 52 and 53 of the anti-mafia code significantly limit the protection of third-party creditors, burdening them with proving numerous conditions for access to the satisfaction of their right, in particular their good faith, and in any event rendering such satisfaction partial, as a result of a 40 percent haircut on the value of the assets.

Applied to seizure aimed at ordinary confiscation, such limitations would violate Articles 3, 24, and 42 of the Constitution, "since they unreasonably prejudice the possibility for the mortgage creditor, even if unrelated to any criminal activity of the debtor […], to satisfy themselves through enforcement on the asset subject to a right in rem of security”.

Having recalled the arguments on the constitutional protection of mortgage security, as articulated by this Court in Judgment No. 160 of 2024, the judge *a quo* denounces that the aforementioned limitations are devoid of adequate justification once the rules of the anti-mafia code have become of generalized application, extended "to situations detached from the *ratio legis*”.

Article 117, first paragraph, of the Constitution would also be violated, in relation to Article 1 of the Additional Protocol to the ECHR, inasmuch as the extension of the anti-mafia code rules would sacrifice, far beyond the purpose of combating organized crime, both the third party's claim, forming part of their assets, and the *ius ad rem* of any successful bidder of the seized asset, both of which are swept away by state acquisition as a result of the subsequent confiscation.

2.3.– According to the referring Court of Cassation, "the question cannot be summarily dismissed on the basis of a presumed precedence of ‘public-interest’ interests in combating crime (underlying criminal instruments) over ‘private-interest’ interests in the protection of the successful bidder (and/or creditors)”.

Indeed, forced expropriation is also underpinned by interests of public significance, which cannot be disregarded in the application of anti-mafia rules where the concrete case is extraneous to that phenomenon.

2.4.– In the opinion of the referring judge, the censured provision, due to its clear literal wording and the connected logical-systemic reasons, is not susceptible to a constitutionally oriented interpretation.

Its constitutional illegitimacy must therefore be declared, removing the ordinary case from the special rules of the anti-mafia code and restoring it to the common law rule of the temporal succession of publicity formalities, in order to "avoid a serious, unreasonable, and unjustified prejudice to the rights of creditors and of the successful bidder or purchaser *in executivis*, which is not in any way justified by the peculiar prevention requirements proper to that special legislation”.

3.– No appearance was entered by the State defense, nor did the parties make an appearance in the proceedings.

The Law in Reasoning

4.– By the order indicated in the heading (ord. reg. no. 253 of 2025), the Court of Cassation, Third Civil Section, raised questions regarding the constitutional legitimacy of Article 104-bis, paragraph 1-bis, second period, of the implementing provisions of the Code of Criminal Procedure, as replaced by Article 373, paragraph 1, letter a), of the Business Crisis Code, and amended by Article 41, paragraph 1, letter l), number 2), of Legislative Decree No. 150 of 2022.

The censured provision allegedly violates Articles 3, 24, 42, and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the ECHR, insofar as it provides that, in relations with individual enforcement proceedings, preventive seizure aimed at confiscation by equivalent value pursuant to Articles 321, paragraph 2, of the Code of Criminal Procedure and 322-ter of the Criminal Code, as well as such confiscation itself, shall be subject to the special rules of the anti-mafia code, in lieu of the common law rule based on the priority of publicity formalities.

5.– The questions were brought by the Court of Cassation following a preliminary referral pursuant to Article 363-bis of the Code of Civil Procedure.

In Judgment No. 119 of 2015, this Court held admissible the incidental proceeding of constitutional legitimacy raised by the court of nomophylaxis for the purpose of stating the principle of law in the interest of the law, pursuant to Article 363, third paragraph, of the Code of Civil Procedure.

On that occasion, it was noted that, although under the hypothesis of the third paragraph of Article 363 of the Code of Civil Procedure the appeal to the Court of Cassation is declared inadmissible and thus the proceedings are closed, the incidental nature of the question is ensured "by the task of the Court of Cassation to state the principle of law on the basis of the rule that may result from the ruling of constitutional illegitimacy and that will, in any event, be ‘different’ from it” dezelfde.

The same argument applies to the statement of the principle of law in the context of a preliminary referral, and indeed applies *a fortiori*, because in such a case the proceedings *a quo* are not closed.

Indeed, pursuant to the same Article 363-bis of the Code of Civil Procedure, the Court of Cassation, having stated the principle of law, remits the case file back to the judge who ordered the referral (fifth paragraph), who is bound by that principle (sixth paragraph).

There is therefore no doubt whatsoever that questions of constitutional legitimacy may be raised by the Court of Cassation with a view to the further course of the proceedings, as this Court has recently highlighted (Judgment No. 125 of 2026).

6.– On the merits, the questions are well-founded.

7.– It is necessary to premise a brief overview of the regulatory and case-law framework, starting from the provisions of the anti-mafia code concerning the protection of third parties, the generalization of which, effected by the business crisis code, constitutes the core of today's challenges.

7.1.– These provisions are contained in Book I of Legislative Decree No. 159 of 2011, dedicated to prevention measures, specifically in Title IV, entitled "Protection of third parties and relations with insolvency proceedings” (Articles 52–65).

This is a regulatory corpus of public-law inspiration, characterized by the precedence of the prevention measure, to whose historical rationale of combating the mafia phenomenon the enforcement of the rights of the subject's creditors has been largely sacrificed.

7.1.1.– For present purposes, therefore with regard to individual enforcement proceedings, leaving aside collective insolvency proceedings, Article 55 of the anti-mafia code is primarily relevant, according to which, once prevention seizure has been ordered, enforcement actions may not be commenced or continued (paragraph 1), and pending ones remain suspended, becoming extinct in relation to assets for which subsequent confiscation intervenes (paragraph 2).

Indeed, with prevention confiscation, pursuant to the preceding Article 45, paragraph 1, assets are acquired by the State's patrimony free from encumbrances and burdens, and thus also from any registered mortgages, since the rights of third parties over those assets are satisfied within the limits and in the forms of the special provisions of the same code.

To this end, the code itself, in Articles 57–61, sets up a sub-proceeding, conducted by the delegated judge of the prevention court, at the end of which admitted claims are satisfied, in the order of causes of preference, applying the statutory haircut.

7.1.2.– Pursuant to Article 52, paragraph 1, of the anti-mafia code, only "the claims of third parties resulting from instruments having a date certain prior to the seizure, as well as rights in rem of security constituted prior to the seizure” may be considered in said sub-proceeding.

However, what under common law represents the necessary and sufficient condition to assert the precedence of a claim over a conflicting title, namely temporal priority (Article 2915 of the Civil Code), is here a necessary but not sufficient condition, since Article 52, paragraph 1, of the anti-mafia code itself demands additional conditions, all in derogation from the general rules of civil law.

7.1.3.– These additional conditions are listed by the provision itself as follows: "a) that the proposed person does not have other assets upon which to exercise patrimonial security suitable for the satisfaction of the claim, except for claims secured by legitimate causes of preference over seized assets; b) that the claim is not instrumental to the illicit activity or to that which constitutes its fruit or reinvestment, provided that the creditor demonstrates good faith and unaware reliance; c) in the case of a promise of payment or acknowledgment of debt, that the underlying relationship is proven; d) in the case of negotiable instruments, that the holder proves the underlying relationship and that which legitimizes possession”.

These are—it must be repeated—derogatory conditions, since that under letter a) derogates from the principle of the generality of patrimonial liability pursuant to Article 2740 of the Civil Code, that under letter c) derogates from the presumption of existence of the underlying relationship pursuant to Article 1988 of the Civil Code, and that under letter d) derogates from legitimation by presentation pursuant to Article 2003 of the Civil Code.

Also derogatory is the condition under letter b), which requires the creditor to prove their good faith, which amounts to establishing a *iuris tantum* presumption of bad faith, whereas, according to established case law of the Court of Cassation, there is a general presumption of good faith, as evidenced by Article 1147 of the Civil Code (most recently, Court of Cassation, Second Civil Section, Judgment No. 2645 of 6 February 2026).

7.1.4.– A further compression of the third party's right is established by Article 53 of the anti-mafia code, pursuant to which claims—even if formally prior to the prevention seizure and even if assisted by the aforementioned derogatory conditions (since otherwise they succumb in full)—"are satisfied by the State within the limit of 60 percent of the value of the seized or confiscated assets”.

Originally set at 30 percent, the haircut to the detriment of good-faith creditors was increased to the current 40 percent by Article 1, paragraph 443, letter b), of Law No. 147 of 27 December 2013, containing "Provisions for the formation of the State's annual and multi-year budget (Stability Law 2014)”.

Furthermore, as a result of Article 20, paragraph 2, of Law No. 161 of 17 October 2017 (Amendments to the code of anti-mafia laws and prevention measures, pursuant to Legislative Decree No. 159 of 6 September 2011, to the criminal code and to the implementing, coordinating and transitional provisions of the code of criminal procedure and other provisions. Delegation to the Government for the protection of labor in seized and confiscated companies), it applies "net”, i.e., after deduction of the expenses of the confiscation proceeding, of the administration of the seized assets, and of the ascertainment of third-party rights.

7.2.– Until the entry into force of the business crisis code, the anti-mafia code provisions concerning third-party rights, described above, were considered special provisions, and therefore not susceptible to analogical application outside the scope of prevention measures, in particular in the case of criminal seizure and confiscation (Court of Cassation, Fourth Criminal Section, Judgment No. 36092 of 6–21 July 2017).

Beyond the taxative cases of direct application of such provisions, it was therefore considered that the ordinary protection of the third party operated on the basis of the common rule of temporal priority (Court of Cassation, Third Criminal Section, Judgment No. 30422 of 30 May–10 July 2019), deeming that the provisions themselves were not expressive of a general precedence of public-interest requirements, nor capable therefore of imposing themselves indiscriminately for any type of confiscation (Court of Cassation, Third Civil Section, Judgment No. 28242 of 10 December 2020; in the same sense, likewise for cases prior to the reform, Judgment No. 31612 of 4 December 2025).

7.2.1.– The framework has radically changed as a result of Article 373, paragraph 1, letter a), of the Business Crisis Code, which amended paragraph 1-bis of Article 104-bis of the implementing provisions of the Code of Criminal Procedure, so that the latter now refers to the provisions of Title IV of Book I of the anti-mafia code, "for the purposes of protecting third parties and in relations with judicial liquidation proceedings”, for the hypothesis where "seizure is ordered pursuant to Article 321, paragraph 2, of the [Criminal Procedure] Code”.

The reference to Article 321, paragraph 2, of the Code of Criminal Procedure, i.e., to the general provision on preventive seizure functional to confiscation, implies that the anti-mafia code provisions on third-party rights have shed their original special connotation, assuming, on the contrary, a trait of generality; indeed, this regulatory amendment has made those rules applicable well beyond the perimeter of prevention seizure and confiscation, also to criminal seizure aimed at confiscation, and not for specific offense titles, but for all those that allow, or prescribe, confiscation.

Moreover, Article 41, paragraph 1, letter l), number 2), of Legislative Decree No. 150 of 2022, intervening further on the aforementioned paragraph 1-bis, also extended its application to criminal confiscation not preceded by precautionary seizure, thereby completing the generalization of provisions that were originally sectoral.

7.2.2.– The Court of Cassation has emphasized how such attraction of any confiscation, and any seizure functional to it, into the anti-mafia code rules has resulted in a general precedence of the criminal measure over civil-law expectations, which latter can no longer find satisfaction except within the limits, and under the conditions, of the aforesaid rules (Third Criminal Section, Judgment No. 40323 of 20 June–4 November 2024).

Furthermore, on the basis of a constitutionally and conventionally oriented interpretation, the new regime has been deemed non-retroactive, observing that the protection granted by the anti-mafia code to the good-faith third party is not fully satisfying, due to the claim haircut, so that, for the past, the priority rule pursuant to Article 2915 of the Civil Code continues to apply (Court of Cassation, First Criminal Section, Judgment No. 7706 of 3 November 2023–21 February 2024).

8.– The interpretive premise of today's questions is therefore correct, inasmuch as the regulatory evolution brought about by the business crisis code, and completed by Legislative Decree No. 150 of 2022, has subjected the protection of third-party creditors in respect of any type of criminal confiscation, and the preventive seizure aimed at it, to the restrictive rules of the anti-mafia code.

The parameters invoked by the referring judge question this Court on the constitutional legitimacy of this new regulatory structure against the yardstick of the principle of reasonableness (Article 3 of the Constitution), the inviolability of the right of defense (Article 24 of the Constitution), the guarantee of the right to property (Article 42 of the Constitution), and the conventional protection of possessions (Article 117, first paragraph, of the Constitution, in relation to Article 1 of the Additional Protocol to the ECHR).

8.1.– According to the constant case law of this Court, the judicial protection of rights, ensured by Article 24 of the Constitution, also encompasses the phase of forced execution, as it is necessary to make the enforcement of judicial rulings effective (*ex multis*, Judgments No. 211 and No. 160 of 2024, No. 159 of 2023, and No. 228 of 2022).

More specifically, as this Court noted in Judgment No. 160 of 2024, regarding the protection of a mortgage creditor against the urban-planning confiscation of real estate, "[c]laims secured by mortgage enjoy peculiar protection in the legal order, which stems from the *in rem* nature of the security right and its accessory character to the claim”, mortgage being, in the typical functional connotations of the *ius sequelae*, *ius distrahendi*, and *ius praelationis*, a component of the creditor's assets, such that it can benefit from the protection attributable to Article 42 of the Constitution, and be, at the same time, "drawn into the protective fold of Article 24 of the Constitution, as an instrument aimed at ensuring preferential protection of the claim in enforcement proceedings”.

In view of these findings, Judgment No. 160 of 2024 also highlighted "the unreasonableness of a set of rules that causes the automatic extinction of the real right of mortgage and the consequent prejudice to the protection of the claim, to the detriment of a mortgage creditor who is not responsible for the abuse”.

8.2.– In the case forming the subject of these proceedings, the mortgage security for the claim, although not radically extinguished by the onset of the criminal encumbrance, suffers an unreasonable and disproportionate compression, which moreover also affects unsecured claims, albeit with lesser evidence.

8.2.1.– Those who disburse credit place reliance on the debtor's assets and for this reason perform, with the diligence of good practices, normal solvency verifications, among which, first and foremost, consulting public registers, both movable and immovable.

It cannot ordinarily be required that the creditor's checks go beyond the sphere of patrimonial indicators, and extend to a profile—that of the debtor's criminal capacity—which, at least as a rule, offers no specific evidence.

The presumption of bad faith, established by Article 52, paragraph 1, letter b), of the anti-mafia code, burdens the creditor with conducting investigations pertaining not to the debtor's patrimonial integrity, but to their criminal integrity, which, while justifiable in the area of combating organized crime (also by virtue of the anti-mafia certification system), appears increasingly un-enforceable the further one moves away from this specific area, or from the original core of prevention measures.

8.2.2.– Similar considerations apply to the creditor haircut.

This proves to be an unreasonable sacrifice of the creditor's assets once they have proven their good faith, and thus their unrelatedness to the debtor's offense.

Furthermore, being applied after deduction of procedural costs—following the aforementioned amendment under Article 20, paragraph 2, of Law No. 161 of 2017—the haircut cannot be justified as a contribution by the creditor to state expenses, resulting instead in a net appropriation by the treasury, to the detriment of good-faith creditors.

8.2.3.– For the European Court of Human Rights, a claim falls within the category of *biens* and *possessions*, guaranteed by Article 1 of the Additional Protocol to the ECHR (*ex multis*, First Section, Judgments of 1 July 2014, Gerasimov and Others v. Russia; 29 July 2010, Streltsov and Another v. Russia; 3 July 2003, Buffalo srl in liquidazione v. Italy).

Similarly, the ECtHR subjects the matter of seizures and confiscations to the criterion of proportionality, which requires a fair balance between the public interest and private rights, a balanced equilibrium that is compromised if an excessive burden is imposed on the holder of the right, to be assessed within the totality of the conditions and limitations established to their detriment, because "their cumulative effect could be such as to tilt the balance in the proceedings in the State’s favour” (Fourth Section, Judgment of 13 July 2021, Todorov and Others v. Bulgaria, paragraph 215).

In dealing with prevention confiscation pursuant to Article 24 of the anti-mafia code, the Strasbourg Court, while highlighting how it may apply even to the detriment of third parties, considering the social dangerousness of the offenses in question, has returned to expressing serious concerns regarding national rules providing for such measures beyond the perimeter of offenses of greater social alarm (First Section, Judgment of 25 September 2025, Isaia and Others v. Italy, paragraph 72).

8.2.4.– Today's questions concern the confiscation provided for by Article 322-ter of the Criminal Code, inserted by Article 3, paragraph 1, of Law No. 300 of 29 September 2000 (Ratification and implementation of the following international Acts drawn up on the basis of Article K.3 of the Treaty on European Union: Convention on the protection of the European Communities' financial interests, done at Brussels on 26 July 1995, of its first Protocol done at Dublin on 27 September 1996, of the Protocol concerning the interpretation by way of preliminary rulings, by the Court of Justice of the European Communities, of said Convention, with annexed declaration, done at Brussels on 29 November 1996, as well as the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, done at Brussels on 26 May 1997 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, with annex, done at Paris on 17 December 1997. Delegation to the Government for the regulation of the administrative liability of legal persons and entities lacking legal personality).

This provision refers to a series of offenses homogeneous in terms of legal objectivity (crimes of public officials against public administration), but very different in gravity, including even minor forms of embezzlement, namely embezzlement for temporary private use and embezzlement through profiting from the error of another, offenses that may be entirely unrelated to organized-crime phenomena, and committed by subjects who are not suspect in the eyes of third parties at the time they become holders of a credit right.

These third parties see their patrimonial right sacrificed, even if of date certain prior to the criminal encumbrance, and even if assisted by a prior mortgage registration, unless they prove their good faith (with a burden that is not easily fulfilled) and, in any event, subject to a 40 percent haircut on the net liquidated amount.

The accumulation of negative aspects renders the burden on the creditor excessive, all the more so in the face of offenses by the debtor not necessarily linked to organized crime, meaning that the censured provision fails the conventional proportionality test.

9.– The censured provision must therefore be declared constitutionally illegitimate, for violation of all the invoked parameters, with reference to the case forming the subject of the proceedings *a quo*, i.e., regarding the protection of creditors who have instituted an individual enforcement proceeding, or have intervened therein, over assets seized or confiscated pursuant to the combined provisions of Articles 321, paragraph 2, of the Code of Criminal Procedure and 322-ter of the Criminal Code.

Although in the referral order the *petitum* is limited to confiscation by equivalent value, the upholding of the questions must necessarily refer to confiscation in general, since the violation of constitutional parameters—although even clearer in relation to the confiscation of the *tantundem*, i.e., of assets other than those specifically correlated to the offense—is also found in direct confiscation having the latter as its object.

9.1.– The upholding of today's questions is not impeded by the precedents of this Court concerning third parties involved in prevention proceedings instituted before the entry into force of the anti-mafia code, namely Judgments No. 94 of 2015 and No. 26 of 2019, both declaring the partial constitutional illegitimacy of Article 1, paragraph 198, of Law No. 228 of 24 December 2012, containing "Provisions for the formation of the State's annual and multi-year budget (Stability Law 2013)”.

Indeed, in determining the subjective extension—for certain classes of creditors—of an intertemporal discipline analogous to that introduced by the anti-mafia code, those judgments still had as their object prevention seizure and confiscation, whereas today's questions concern the position of third parties with respect to the broader spectrum of ordinary seizure and confiscation.

Indeed, precisely here lies the constitutional breach found today, namely the accomplished extension of the anti-mafia code's rules on third-party rights from prevention seizure and confiscation to criminal seizure and confiscation.

9.2.– This Court is not unaware that today's declaration of constitutional illegitimacy, affecting a particular case within an interconnected regulatory reality, brings with it coordination problems, if not a need for organic revision.

On the one hand, since the ruling now adopted specifically concerns individual enforcement proceedings, the issue arises of the repercussions on collective insolvency proceedings: indeed, the censured provision also refers to these, through the wording "and in relations with judicial liquidation proceedings”, in addition to Article 317 of the Business Crisis Code, which, under the heading "Principle of precedence of real precautionary measures and protection of third parties”, in turn circularly refers to Title IV of Book I of the anti-mafia code, to Article 321, paragraph 2, of the Code of Criminal Procedure, and to Article 104-bis of the implementing provisions of the Code of Criminal Procedure itself.

On the other hand, since this judgment, by reason of the relevant case, is limited to seizure and confiscation pursuant to Article 322-ter of the Criminal Code, a space opens for reflection on precautionary and forfeiture measures assimilable to the aforementioned, as well as on the provision in the first period of paragraph 1-quater of the same Article 104-bis of the implementing provisions of the Code of Criminal Procedure, which specifically extends the anti-mafia code rules to seizure and confiscation in special cases and to further cases of seizure and confiscation in proceedings for crimes regarding which public prosecutor functions are assigned to the district prosecutor's office.

The plurality of cases, characterized by points of contact but also by distinctive profiles—suffice it to note that, unlike collective insolvency proceedings, "the prevention proceeding does not presuppose any situation of insolvency of the subject, but rather their dangerousness” (Judgment No. 12 of 2024)—suggests the advisability of concerted legislative intervention.

10.– In conclusion, the constitutional illegitimacy of the censured provision must be declared, insofar as it establishes that, in the event of seizure ordered pursuant to Article 321, paragraph 2, of the Code of Criminal Procedure, for the purpose of confiscation pursuant to Article 322-ter of the Criminal Code, and in the event of confiscation ordered pursuant to the latter provision, for the purpose of protecting third-party creditors who have instituted an individual enforcement proceeding over the seized or confiscated assets, or have intervened in such proceeding, the provisions of Title IV of Book I of the anti-mafia code apply.

The declaration of constitutional illegitimacy specifically removes the subjection of the aforementioned case to the provisions of Title IV of Book I of the anti-mafia code, which implies that the case itself returns to the fold of the common law rule, which establishes the precedence of claims resulting from instruments of a date certain prior to the seizure (or confiscation not preceded by seizure) and of rights in rem of security registered prior to the seizure (or confiscation not preceded by seizure).

The legislature may, in the exercise of its discretion, and in compliance with the Constitution, introduce specific regulations to reconcile the protection of the patrimonial rights of good-faith third parties with the requirement to combat collusive practices with the perpetrators of offenses.

on these grounds

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 104-bis, paragraph 1-bis, second period, of Legislative Decree No. 271 of 28 July 1989 (Implementing, coordinating and transitional provisions of the Code of Criminal Procedure), as replaced by Article 373, paragraph 1, letter a), of Legislative Decree No. 14 of 12 January 2019 (Code of Business Crisis and Insolvency implementing Law No. 155 of 19 October 2017), and amended by Article 41, paragraph 1, letter l), number 2), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the prompt conclusion of judicial proceedings), insofar as it establishes that, in the event of seizure ordered pursuant to Article 321, paragraph 2, of the Code of Criminal Procedure, for the purpose of confiscation pursuant to Article 322-ter of the Criminal Code, and in the event of confiscation ordered pursuant to the latter provision, for the purpose of protecting third-party creditors who have instituted an individual enforcement proceeding over the seized or confiscated assets, or have intervened in such proceeding, the provisions of Title IV of Book I of Legislative Decree No. 159 of 6 September 2011 (Code of anti-mafia laws and prevention measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010) apply.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 8 June 2026.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed in the Registry on 16 July 2026

 

The anonymized version conforms in its text to the original